Russell Abrutyn

Abrutyn Law PLLC

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Berkley, MI 48072

Thursday, July 5, 2012

6th Circuit on fleeing, CIMTs

Ruiz-Lopez v. Holder, No. 11-3730 (6th Cir. June 19, 2012) (published)

In this case, the court found that a Washington State conviction for felony fleeing was a CIMT.  To a large extent, the court relied on the inclusion as a statutory element the "wanton or wilful disregard for the lives or property of others."  Michigan's fleeing and eluding statutes lack this element and some of the aggravating factors present in the 5th and 7th circuit decisions it cited to.  Still, this decision makes it more likely that Michigan's fleeing and eluding statute will be a CIMT.

Importantly, the court only employed the two-step analysis (categorical and modified categorical) and did not use or even mention the existence of the 3rd step created in Silva-Trevino.  The court went so far in a footnote as to expressly refuse to look beyond or behind the record of conviction at the actual conduct.  The court has yet to expressly adopt or reject Silva-Trevino's third step but in a number of cases now the court has limited its analysis to the traditional two-step approach.

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